The rising cost of free speech: Reynolds, contempt and Twitter

Free speech is under attack. Or so it seems. The last few weeks have been abuzz with stories to do with free speech: a Supreme Court ruling on the Reynolds defence to libel; contempt of court proceedings against an MP for comments made in a book and the latest in a growing line of criminal trials for Twitter offences. The diversity of media at the heart of these stories – print news, traditional books and online ‘micro-blogging’ -  indicates the difficulty of the task for the legal system.

Flood v Times: how does this affect calls for libel reform?

On 21 March, the Supreme Court affirmed the Times newspaper’s reliance on the Reynolds defence to libel – often referred to as Reynolds privilege or the responsible journalism defence – to a claim by a detective sergeant in the Metropolitan Police.

The case hinged on whether the Times could have a defence to the claim, when it had published a defamatory article on an investigation of police corruption, which subsequently found the allegations to be groundless. The Supreme Court unanimously held that it did, because the requirements of the defence were met: amongst other things, the article was in the public interest, the journalists had tried to verify the allegations and the article would not be publishable without naming the officer (see Lord Mance at [179]).

So how does this case affect free speech – the protection of which has driven a strong campaign for libel law reform? Hugh Tomlinson QC post on the case on the Inforrm blog, and concluded that: “This is an interesting but not radical decision.  It establishes no new point of principle.

Defence to suit in libel for responsibly conducted, public interest journalism is undoubtedly a cornerstone of the reformers’ campaign. In Flood, Lord Phillips recognised that the Reynolds defence was ‘created’ (sceptics of judge-made law take note) precisely because English common law afforded inadequate protection:

The fact remains, however, that the creation of Reynolds privilege reflected a recognition on the part of the House of Lords that the existing law of defamation did not cater adequately for the importance of the article 10 right of freedom of expression” (at [46]).

The simple question is: following the “creation” of this defence, has this inadequacy been corrected? The Libel Reform Campaign believes it has not, citing the unwieldy and onerous criteria needed to plead the defence as the reason. The Campaign called for a new statutory public interest defence, which would mean that if a defendant proved the publication was in the public interest, the claimant could only succeed if they could prove maliciousness or recklessness in publication, subject to compliance with a number of safeguards.

The Draft Defamation Bill, published last year, simply puts the Reynolds defence on a statutory footing. The Joint Committee report on the draft Bill expressly rejected calls for a wider defence (see §35 of the report). The Government’s response in February this year largely agreed with the Joint Committee’s proposals.

It does not seem likely that a Defamation Bill, expected in the Queen’s Speech in May, would go further than the Reynolds defence. Whether the clarity of a statutory defence is sufficient to rebalance the problem identified in Reynolds remains to be seen.

Contempt of court

The Attorney General has been busy of late. Aside from his pronouncements on human rights, his office has kept up a steady stream of comments on or proceedings of contempt of court – with a particular focus on online activity. Examples include jurors that discussed a case on Facebook, and conducted internet research on a case, both of whom received custodial sentences.

The effect of contempt laws on free speech was highlighted recently by the reaction to criticism of a Northern Irish judge, made by the Labour MP Peter Hain in his memoirs.

The offending passage describes the handling of a judicial review claim by Lord Justice Girvan, which included a ruling critical of a decision taken by Mr Hain. When the book was published, Northern Ireland’s Lord Chief Justice described the comments as “undermining and unhelpful to the administration of justice in Northern Ireland.” The Attorney General of Northern Ireland issued contempt proceedings against Mr Hain.

There are clearly different rules on free speech when it comes to politicians and the judiciary: there is a public interest in Ministers respecting the courts and vice versa to avoid excessive use of power by either arm of the state. However, should such rules be applied through court proceedings, or remain, as they primarily are in the UK, as conventions with sanctions meted out by the Cabinet and senior judges?

Twitter

There has been a near-constant supply of legal actions arising from Twitter comments, following the significant case of Paul Chambers, who made what he saw as a joke about the state of an airport following snow. He was found guilty of sending a menacing message under the Communications Act 2003 and fined £385.

Recently, there have been a number of instances of offensive tweets. Liam Stacey was jailed for 56 days for sending racist tweets following the collapse of footballer, Fabrice Muamba. Following this, there are reports of a police investigation of racist tweets about another footballer, James Perch.

The Stacey sentence was deemed serious enough for the Council of Europe’s outgoing human rights Commissioner, Thomas Hammarberg, to weigh in with a comment. He said the prison sentence was “wrong”. Commenting on the difficulty that sites such as Twitter bring to this area, he told the Guardian newspaper

People are at a loss to know how to apply rules for the traditional media to the new media. It’s tricky and that’s why there needs to be a more thorough discussion about this.

Free speech under attack?

It seems as though these cases represent a barrage of attacks on free speech, from numerous angles. Even the decision in Flood doesn’t solve enough problems for some. Criticism from arguably Europe’s top human rights position can’t be good and the depth of feeling on the issue is clear when the Daily Mail columnist Quentin Letts gets behind a Labour MP.

At the heart of each issue highlighted above is whether freedom of speech should override the otherwise legitimate protection of reputation, judicial independence and public order or decency. The cases also show that online publishing is not the only source of difficult cases in this balance.

There is of course no simple answer to these problems. But where the balance tips too far in favour of one interest, it should be remembered that the freedom to voice opposition is the crucial tool we have to correct such imbalance.

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